The CIA Goes to Court to Defend Its Right to Leak Secret Information

Government public affairs are a strange sort of beast. On the one hand, these public affairs offices are required to treat all requests for information the same. On the other hand, federal public affairs officers cultivate key beat reporters and columnists by providing them access to persons and documents that are not made available to the press corps in general. An “exclusive” interview with a high-level official can be bartered for some faux pas being ignored or the agency being given the benefit of a doubt rather than being vilified. If you want to get in front of a scandal or disaster or push back on OMB cutting your budget, these favored reporters are your competitive advantage.

Now think about the regularity with which classified documents find their way into the press. Sad to say, the source of leaks of many classified documents is federal public affairs officers or senior officials who have found that showing a reporter a classified document to support your side of an argument is pretty much like offering your favorite feline a hit of catnip.

In the Intelligence Authorization Act for FY 2013 (sec. 504), Congress directed that “In the event of an authorized disclosure of national intelligence” to the media, the government official responsible for authorizing the disclosure shall notify Congress in a timely fashion whenever the intelligence disclosed is classified (or declassified for the purpose of the disclosure).

Right now there is an interesting case underway that seems poised to blow this cozy relationship up.

Last March, a lefty journalist named Adam Johnson sued the CIA over what he claimed was a constructive denial of FOIA request. Johnson has asked for emails between the CIA’s Office of Public Affairs and several prominent journalists: Jo Becker, reporter for the New York Times; Scott Shane, reporter for the New York Times; David Ignatius, reporter for the Washington Post; Ken Dilanian, reporter for the Los Angeles
Times; Brian Bennett, reporter for the Los Angeles Times; Matt Apuzzo, reporter for the Associated Press Adam Goldman, reporter for the Associated Press; Siobhan Gorman, then a reporter for the Wall Street Journal; Devlin Barrett, reporter for the Wall Street Journal; and Evan Perez, reporter for the Wall Street Journal.

A couple of these are interesting. Ken Dilanian is a close friend of Fusion GPS’s Glenn Simpson and he was the go-to guy for Glenn Simpson to walk back his testimony that the FBI had a “walk-in” source in the Trump campaign. Evan Perez is a drinking and fishing buddy of Simpson and has run several pieces on the Trump dossier.

The “constructive denial” took place when the CIA gave him the emails but they had redacted large portions of the emails as classified. Johnson cried foul. He said that once the CIA had decided to give the classified information to a select group of reporters that they had forfeited any right to classify it. I would also add that by sending the information via email the CIA demonstrated that classifying the material was bullsh** to begin with.

CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private.

There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including “trusted reporters,” for any purpose, including the protection of CIA sources and methods that might otherwise be outed.

The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had?

The answer: CIA voluntarily disclosed what it had no obligation to disclose (and, indeed, had a statutory obligation not to disclose).

In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private as to anyone else.

The CIA is appealing.

If this ruling sticks it will drastically up the ante for agencies that use confidential or classified information as bargaining chips with a favored group of reporters. It means that by targeting the emails between those reporters and agencies you can force disclosure of the information to the public. In a world where agencies routinely classify their f***-ups to prevent disclosure and use classified information to shape public opinion, that is a very good thing.